IN THE MATTER OF E.M.

FINIGAN, J. Pembroke Hospital ("Pembroke" or "hospital") petitioned for the civil commitment of the respondent ("E.M.") under G.L. c. 123, §§ 7 and 8 and, on the same date, petitioned for the treatment of E.M. with antipsychotic medication under G.L. c. 123, § 8B. At the conclusion of the commitment hearing before a District Court judge, the court allowed both petitions. E.M. does not challenge the judge's decision to allow the petition for commitment; he does challenge the allowance of the petition to treat him with antipsychotic medication because the court did not conduct a separate hearing prior to the allowance of the petition. For the following reasons, we vacate the order of treatment.

Background. The commitment hearing took place on November 4, 2020, with both the hospital and E.M. represented by counsel. In accordance with the Supreme Judicial Court's standing order in effect at the time in light of the COVID-19 pandemic, the hearing was conducted via "Zoom" videoconference. The hospital provided testimony from E.M.'s attending psychiatrist, Wilnelya Morales ("Morales"). E.M. stipulated to Dr. Morales's qualifications.

Dr. Morales testified that E.M. was a fifty-six year old man with a long history of diagnosis of bipolar disorder. Dr. Morales testified that E.M. had arrived at the hospital after being transferred from the emergency room of a local hospital. According to Dr. Morales, E.M. had drawn the attention of the local police department after he had displayed bizarre and threatening behavior. Before arriving at the hospital, E.M. had been treated with antipsychotic medication in the emergency room.

While at Pembroke, according to Dr. Morales, E.M. had displayed delusions and paranoid beliefs and had accepted some medication albeit inconsistently, namely lithium, along with high blood pressure medication. In conclusion, Dr. Morales opined that due to E.M.'s mental illness, he posed a risk of harm to himself if discharged, and there was no less restrictive alternative available in the community.

E.M.'s attorney cross-examined Dr. Morales on the extent of E.M.'s aggressiveness, his finances, and allergies to certain medication. Counsel also established that E.M.'s sister had been active in his life, and Dr. Morales had spoken to the sister, who suggested E.M. had suffered adverse side effects in the past with certain medication.

Both sides had asked E.M.'s sister to be present for the hearing. The sister did attend, also via videoconference, and expressed a willingness to participate. To that end, hospital counsel called her to testify. She testified she was in frequent contact with E.M. and knew he had been hospitalized for psychiatric reasons some fifty plus times. According to the sister, in recent years her brother had been committed to

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several facilities as his mental health worsened, and he had a history of failing to take his prescribed medication following discharge, which placed him at risk of harm.

Before beginning his cross-examination of the sister, E.M.'s attorney suggested the hospital continue with her testimony relative to the G.L. c. 123, § 8B portion of the hearing, for the "convenience of the witness." The judge agreed, and hospital counsel then continued. While the record does not suggest the sister had a medical background, she testified as to various common antipsychotics that had been used to treat her brother in the past, and his response generally to each. While not expressly stated on the record, the hospital then rested the commitment portion of its case.

After the hospital rested, E.M. testified on his own behalf in somewhat disjointed fashion, touching on a variety of topics but with little testimony concerning his preferences for medication. After argument from counsel, the court allowed the petition for commitment without elaboration. Despite earlier indications to the contrary, no further mention of the G.L. c. 123, § 8B hearing was made, and Dr. Morales was not recalled to testify as to the proposed medication plan. The court nonetheless approved the plan the same day, completing a written findings form regarding competency and substituted judgment factors.

Analysis. The order of treatment has now expired. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018). Even though E.M. has appealed only the treatment order, we do not view the issue as moot, as such an order involves a judicial determination that a person is incompetent to make his or her own decisions regarding medical treatment. As such, an individual suffering from mental illness has a "continuing interest" in the decision beyond the expiration of the order. Matter of W.M., 2021 Mass. App. Div. 17, 19, citing Matter of F.C., supra.

Under G.L. c. 123, § 8B(a), the superintendent of a facility may file a petition with the District Court for a person who is the subject of a petition for commitment to "adjudicate the patient incapable of making informed decisions about proposed medical treatment [and] to authorize, by an adjudication of substituted judgment, treatment with antipsychotic medications." Under § 8B(d), "[T]he court shall not authorize medical treatment unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." The foregoing elements must be proved by a preponderance of the evidence, and the court must give close attention to the evidence and enter specific findings on each of the issues. See Guardianship of Jane Doe, 411 Mass. 512, 523-524 (1992).

As reflected in the statute and the District Court Standards, a commitment petition and a G.L. c. 123, § 8B petition must be treated as two separate proceedings. See G.L. c. 123, § 8B(b) and Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness § 8.02 (2019) ("The court must hold a hearing to consider a § 8B petition to authorize medical treatment for mental illness unless the respondent waives the hearing. The hearing may not commence until the court has issued an order of commitment" [emphasis added].).

We do not set aside a judge's findings of fact unless they are "clearly erroneous."

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Mass. R. Civ. P. 52(c). Here, perhaps due to the relative newness of conducting the hearing entirely by videoconference, the judge never revisited the treatment portion of the hearing after making his decision regarding the order of commitment. A finding is "clearly erroneous" when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

While the judge could have incorporated the testimony of the commitment hearing into the treatment hearing, there is nothing in the record to show he did so. See Matter of M.S., 99 Mass. App. Ct. 247, 251 (2021). Lastly, although the judge did complete a preprinted form containing findings concerning competency and substituted judgment, those findings are not supported by the record and are therefore set aside.

For all of these reasons, the trial court's order of treatment is vacated.